Citizens to Preserve Overton Park, Inc. v. Brinegar

494 F.2d 1212, 6 ERC 1573, 4 Envtl. L. Rep. (Envtl. Law Inst.) 20327, 6 ERC (BNA) 1573, 1974 U.S. App. LEXIS 9347
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 3, 1974
DocketNos. 73-1668, 73-1669
StatusPublished
Cited by3 cases

This text of 494 F.2d 1212 (Citizens to Preserve Overton Park, Inc. v. Brinegar) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Citizens to Preserve Overton Park, Inc. v. Brinegar, 494 F.2d 1212, 6 ERC 1573, 4 Envtl. L. Rep. (Envtl. Law Inst.) 20327, 6 ERC (BNA) 1573, 1974 U.S. App. LEXIS 9347 (6th Cir. 1974).

Opinion

CELEBREZZE, Circuit Judge.

This litigation began in 1969, when Secretary of Transportation, John A. Volpe, approved a 3.7 mile extension of Interstate Highway 40 through Memphis, Tennessee. Four thousand feet of this project was to cut through Overton Park, a public wooded area in downtown Memphis. Citizens to Preserve Overton Park, Inc., organized to oppose the Secretary’s action. They challenged his approval as contrary to § 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f). Section 4(f) states that “the Secretary [of Transportation] shall not approve any program or project which requires the use of any publicly owned land from a public park”, among other areas,

“unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park . . . resulting from such use.”

The District Court granted summary judgment for defendants, 309 F.Supp. 1189 (W.D.Tenn.1970). This decision was affirmed by this court with one judge dissenting. 432 F.2d 1307 (6th Cir. 1970). The Supreme Court reversed, holding that the District Court must review the full administrative record before the Secretary at the time of his decision in order to determine whether the Secretary “could have reasonably believed that in this case there are no feasible alternatives or that alternatives do involve unique problems” and whether the Secretary’s decision “was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” 401 U.S. 402, 415-416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971).

On remand, 335 F.Supp. 873, the District Court, having conducted a full hearing and having probed the prior administrative proceedings, concluded that the Secretary had made a proper decision as to the design of the proposed route and had only to determine whether the Over-ton Park route was the sole feasible and prudent route. Thus, the Court remanded the case to the Secretary “only for the purpose of making a route determination in compliance with § 4(f) of the Department of Transportation Act of 1966 as that provision has been construed by the Supreme Court”. The Court enjoined both the federal and state defendants from engaging in activities which would advance construction of the Overton Park route.

Secretary Volpe ordered a full review of the decision thereafter. Because of legislation passed and regulations issued after his initial approval of the route, the Secretary ordered the preparation of an environmental impact statement in accordance with § 102(C) of the National Environmental Policy Act of 1969, and the holding of a public hearing in compliance with § 5(b) of Policy and Procedure Memorandum 20-8, promulgated under the 1970 Federal-Aid Highway Act. After a searching administrative review of the matter, Secretary Volpe refused to approve the Overton Park route on January 18,1973. He stated that the National Environmental Policy Act, the Federal-Aid Highway Act, and the noise standards set by the Federal Highway Administration, as well as the Supreme Court’s interpretation of § 4(f), had weighed in his reconsideration of the matter:

“On the basis of the record before me and in light of guidance provided by [1214]*1214the Supreme Court, I find that an Interstate highway as proposed by the State through Overton Park cannot be approved. On that record I cannot find, as the Statute requires, and as interpreted by the courts, that there are no prudent and feasible alternatives to the use of parkland nor that the broader environmental protection objectives of the NEPA, and the Federal-Aid Highway Act have been met, nor that the existing proposal would comply with FHWA standards on noise.”

The Secretary noted “possible alternatives which the State of Tennessee may wish to consider,” without endorsing a particular one or rejecting the “no build” alternative.

Commissioner Charles W. Speight, of the Tennessee Department of Highways (hereafter the State), responded to this rejection on February 1, 1978, by petitioning the District Court for an order requiring the Secretary “to comply with terms of remand order or, in the alternative, to dissolve injunction as to state defendant.” The State argued that the Secretary had not made a “route determination” as required by the Court’s original remand order. The State also argued that the Secretary had gone beyond the terms of the remand order in reconsidering the highway’s design and that the Secretary had failed to discharge his 49 U.S.C. § 1653(f) obligation to make a route determination. The crux of the State’s objection was that it was entitled either to proper approval of the Overton Park route or to a formal statement of what other route is prudent and feasible, along with specific findings of any other legal shortcomings of the Overton Park route. The State’s fear was that the Secretary’s rejection of the Overton Park route left it with no obvious direction — with no alternative proposal guaranteed of federal funding.

On May 1, 1973, the District Court granted the relief requested by the State. The Court found that the Secretary had not made the route determination required by his January 5, 1972 remand order. He therefore ordered the new Secretary of Transportation, Claude S. Brinegar, to perform several acts. First, the Secretary must either find unequivocally that there is no feasible and prudent alternative to the use of Over-ton Park land for interstate 40 (thus amounting to approval of that route), or state that there is at least one feasible and prudent alternative route and specify it, so that the court can review the correctness of that decision. Second, the Secretary must find and state for the record, if true, that the Overton Park route would violate the National Environmental Policy Act of 1969, and 1970 Federal-Aid Highway Act, or the noise standards of the Federal Highway Administration, and at least designate the respects in which such provisions would be violated by the construction of this project. Third, the Secretary need not reconsider approval of the Overton Park route (the putative rejection of January 18, 1973, having been found unlawful), but he may reconsider the design decision (a separate decision from the question of approving the park route in any form). Fourth, the Secretary must bear the burden of obtaining any additional information, as the District Court discharged the State of Tennessee from any further responsibility to produce information for the Department of Transportation. Finally, the Secretary must do all these things within 45 days.

In separate appeals, consolidated for review by this court, Citizens to Preserve Overton Park and the Secretary of Transportation attack the District Court’s decision. The Secretary argues that the District Court’s interpretation of § 4(f) is “wholly foreign to the statutory scheme Congress has enacted to govern the use of federal funds in highway construction.” Whereas the District Court held, and the State urges, that § 4(f) requires a formal statement of findings and reasons from the Secretary for rejecting the Overton Park [1215]

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494 F.2d 1212, 6 ERC 1573, 4 Envtl. L. Rep. (Envtl. Law Inst.) 20327, 6 ERC (BNA) 1573, 1974 U.S. App. LEXIS 9347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/citizens-to-preserve-overton-park-inc-v-brinegar-ca6-1974.